People v. Soriano

• Decision Date: 30 October 2014
• Citation: 2014 N.Y. Slip Op. 07380,995 N.Y.S.2d 387,121 A.D.3d 1419
• Parties: The PEOPLE of the State of New York, Respondent, v. Frank SORIANO, Appellant.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 1419

995 N.Y.S.2d 387

2014 N.Y. Slip Op. 07380

The PEOPLE of the State of New York, Respondent,

v.Frank SORIANO, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 30, 2014

Affirmed. Gerard V. Amedio, Saratoga Springs, for appellant.

Stuart M. Cohen, Special Prosector, Rensselaer, for respondent.

Before: PETERS, P.J., STEIN, GARRY, LYNCH and DEVINE, JJ.

STEIN, J.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered November 28, 2012, upon a verdict convicting defendant of the crimes of assault in the second degree and criminal possession of a weapon in the fourth degree.

On September 10, 2011, defendant and the victim were traveling in their separate vehicles and were involved in a minor collision. After defendant and the victim stopped their respective vehicles on the shoulder of the road, a physical altercation ensued and, at some point therein, defendant slashed and/or stabbed the unarmed victim multiple times with a dagger that had a two-inch blade. As a result of his injuries, the victim was airlifted to a hospital where he was treated for his wounds and severe blood loss.

Defendant was subsequently arrested and indicted on charges of assault in the first and second degrees, attempted assault in the first degree and criminal possession of a weapon in the fourth degree. Following a jury trial, defendant was convicted of assault in the second degree and criminal possession of a weapon in the fourth degree and was thereafter sentenced to a prison term of five years, to be followed by three years of postrelease supervision, and a concurrent one-year term of incarceration, respectively. Defendant now appeals, and we affirm.

Initially, we reject defendant's argument that his conviction of assault in the second degree was against the weight of the evidence because the People failed to establish that the victim sustained a serious physical injury. Such conviction was premised on defendant causing physical injury to the victim “by means of a deadly weapon or a dangerous instrument” (Penal Law § 120.05[2] ),¹ which only requires proof that defendant caused physical injury,² not serious physical injury ( see Penal Law § 120.05[2] ). Here, the proof provided by the People established that defendant intentionally used a dangerous instrument and/or deadly weapon—specifically, a dagger ³—to cause physical injury to the victim, and we discern no basis to conclude that the jury's verdict was against the weight of the evidence ( see People v. Taylor, 118 A.D.3d 1044, 1045–1047, 986 N.Y.S.2d 711 [2014], lv. denied 23 N.Y.3d 1043, 993 N.Y.S.2d 257, 17 N.E.3d 512 [2014]; People v. Francis, 83 A.D.3d 1119, 1122, 922 N.Y.S.2d 581 [2011], lv. denied 17 N.Y.3d 806, 929 N.Y.S.2d 565, 953 N.E.2d 803 [2011] ).

Defendant also challenges the weight of the evidence supporting his conviction of criminal possession of a weapon in the fourth degree, which, as relevant here, required proof that defendant possessed a “dagger, dangerous knife ... or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another” (Penal Law § 265.01[2] ). While defendant conceded that he possessed a dagger and used it against the victim, causing him physical injury, defendant argues that the proof was insufficient to establish his intent to use the dagger unlawfully. Despite defendant's testimony that he struck the victim because the victim was repeatedly hitting him and defendant believed that the victim was going to kill him, it was within the jury's province to credit the testimony of the victim and the eyewitnesses that would support a contrary conclusion ( see People v. Bailey, 111 A.D.3d 1310, 1312, 974 N.Y.S.2d 227 [2013], lv. denied 23 N.Y.3d 1018, 992 N.Y.S.2d 800, 16 N.E.3d 1280 [2014]; People v. Brown, 100 A.D.3d 1035, 1036–1037, 952 N.Y.S.2d 828 [2012], lv. denied 20 N.Y.3d 1009, 960 N.Y.S.2d 352, 984 N.E.2d 327 [2013]; People v. Britton, 27 A.D.3d 1014, 1015, 812 N.Y.S.2d 676 [2006], lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674 [2006] ). Further, defendant's unlawful intent may be inferred from his actions, including the use of the weapon, and the surrounding circumstances ( see People v. Molina, 79 A.D.3d 1371, 1376, 914 N.Y.S.2d 331 [2010], lv. denied 16 N.Y.3d 861, 923 N.Y.S.2d 423, 947 N.E.2d 1202 [2011] ). Thus, when we view the evidence in a neutral light and accord deference to the jury's “opportunity to view the witnesses, hear the testimony and observe demeanor” ( People v. Molina, 79 A.D.3d at 1376, 914 N.Y.S.2d 331 [internal quotation marks and citations omitted] ), we find that the jury's verdict is not against the weight of the evidence.

We are unpersuaded by defendant's assertion that County Court committed reversible error by refusing to permit him to introduce into evidence statements that he made to the state trooper who responded to the scene of the incident with respect to defendant's belief that he was defending himself against the victim. At trial, the People informed County Court that they did not intend to offer any statements made by defendant to law enforcement, and County Court denied defendant's request to elicit the statements at issue because they were exculpatory hearsay that did not fall within an exception to the hearsay rule. Under the circumstances, and given the testimony of the responding officer with respect to defendant's demeanor at the time the statements were made, we cannot say that County Court abused its “wide discretion” in determining that the statements did not constitute an excited utterance ( People v. Carroll, 95 N.Y.2d 375, 385, 718 N.Y.S.2d 10, 740 N.E.2d 1084 [2000] ). Nor did such statements fall within the state of mind exception to the hearsay rule. Indeed, inasmuch as “the only relevancy of defendant's statement[s] would have been to support his justification defense,” the statements were “inadmissible self-serving hearsay” ( People v. Reynoso, 73 N.Y.2d 816, 819, 537 N.Y.S.2d 113, 534 N.E.2d 30 [1988] ) and were, therefore, properly excluded.

However, notwithstanding the People's prior assurance, the People proceeded to directly elicit from the trooper a small portion of defendant's statements. Even assuming that County Court erred in refusing to permit defendant to then elicit testimony that would have completed the exchange between him and the trooper, when we consider the overwhelming evidence of defendant's guilt—including the testimony of numerous eyewitnesses, none of whom had any apparent relationship with either defendant or the victim—coupled with the fact that defendant testified extensively as to his subjective fear for his life during the altercation, we find that such error was harmless in that there is no significant probability that the verdict would have been different in the absence thereof ( see People v. Byer, 21 N.Y.3d 887, 889, 965 N.Y.S.2d 771, 988 N.E.2d 507 [2013]; People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

Defendant's claim that he was denied a fair trial based on remarks made by the victim during cross-examination is without merit. There is no question that the challenged statements were inappropriate, inflammatory and, to some extent, prejudicial. During cross-examination, both the People and County Court made repeated attempts to re-direct the victim and to limit his responses to counsel's questions. On the other hand, defense counsel neither objected to the victim's...